The Right of Privacy

Filmmakers are often uncertain how far they can go when shooting documentaries, without invading the privacy of others. Generally speaking, persons caught on camera in a public place do not have a legal right to preclude others from photographing them. But a lot depends on how their photo is used, and whether it is newsworthy. If the photo is being used on a product, like pickles, you will need to secure a depiction release. But the same photo appearing in a newspaper would not provide grounds for a successful suit for invasion of privacy. 

The United States Constitution does not mention a right of privacy. According to the United States Supreme Court, however, such a right is implicit in the Constitution and the Bill of Rights. The right of privacy has been defined as the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity. In other words, it is the right to be left alone. 

Like defamation, the right of privacy is subject to constitutional restrictions. The news media, for example, is not liable for defamatory statements that are newsworthy unless they are made with knowing or reckless disregard of the truth (i.e., actual malice). Unlike defamation, a cause of action for invasion of privacy does not require any injury to one’s reputation. 

Suppose you were in your backyard sunbathing in the nude--your backyard is surrounded by a solid wood fence preventing passersby from seeing you. Suddenly a photographer for The National Enquirer hops over the fence and snaps your picture. Soon the photograph is displayed in newspaper tabloids near supermarket checkout stands across the nation. Can you sue for defamation?

No, because you were sunbathing in the nude and truth is an absolute defense to defamation. Could you sue for invasion of privacy? Yes. You have a reasonable expectation of privacy in your enclosed backyard.

Suppose you were sunbathing in the nude on your front porch, in open public view. Could you bring a successful action for invasion of privacy? No, because you do not have a reasonable expectation of privacy under these circumstances. Thus, whether an intrusion into your privacy will be actionable depends on whether you have a reasonable expectation of privacy. 

Many defenses to defamation apply to invasion of privacy. But truth is not a defense. Revealing matters of public record cannot be the basis for an invasion of privacy action because the information is already public. Express and implied consent are valid defenses. If you voluntarily reveal private facts to others, you cannot recover for invasion of your privacy. 

Privacy actions typically fall into four factual patterns.

Intrusion into One’s Private Affairs

This category includes such activities as wiretapping and unreasonable surveillance. The intrusion must be highly offensive. Whether an intrusion is highly offensive depends on the circumstances. Most people would find it offensive to discover a voyeur peering through their bedroom window. On the other hand, a salesman knocking on your front door at dinnertime may be obnoxious, but will not be sufficiently offensive to state a cause of action. 

Public Disclosure of Embarrassing Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability for invasion of privacy, if the matter publicized is of a kind that:

a)  would be highly offensive to a reasonable person, and

b) is not of legitimate concern to the public. In other words, it is not newsworthy.

An example of this type of invasion of privacy would occur if someone publicizes embarrassing derogatory information on another person, publicizes it and the information is not of legitimate interest to the public.

Appropriation

An action for appropriation of another’s name or likeness is similar to action for invasion of one’s right of publicity. The former action seeks to compensate the plaintiff for the emotional distress, embarrassment and hurt feelings that may arise from the use of one’s name or likeness on a product. The latter action seeks to compensate the plaintiff for the commercial value arising from the exploitation of one’s name and likeness.

As with the right of publicity, a person cannot always control the use of his name and likeness by another. While you can prevent someone from putting your face on their pancake mix, you cannot stop Time magazine from putting your face on its cover. Thus the use of someone’s name or likeness as part of a newsworthy incident would not be actionable. 

False Light

Publicity placing a plaintiff in a false light will be actionable if the portrayal is highly offensive. This type of invasion of privacy is similar to defamation but harm to reputation is not required. An example of false light invasion of privacy could entail a political dirty trick such as placing the name of a prominent Republican on a list of Democratic contributors. Although this person’s reputation may not be harmed, he has been shown in a false light.

CLIENT CORNER

NTSF:SD:SUV

Congratulations to our client producer Jon Stern on completion of his first TV season of the outrageous comedy National Terrorism Strike Force: San Diego: Sport Utility Vehicle (NTSF: SD:SUV).

 The series is produced for Cartoon Network’s Adult Swim (Turner Broadcasting) and is a parody of the numerous police procedurals on network television. 

The series features Paul Scheer, Rob Riggle, Brandon Johnson and June Raphael among others. Trailer at: http://www.youtube.com/watch?v=XKylO_zfGIs

Forks Over Knives

Brian's Wendel's documentary Forks Over Knives will be theatrically released beginning with  a 19 city roll out on  May 6, 2011. The feature film examines the claim that most, if not all, of the degenerative diseases that afflict us can be controlled, or even reversed, by rejecting our present
menu of animal-based and processed foods.

Forks Over Knives (FOK) will play at Landmark, Regal and AMC theaters, among others. 

An advance screening in Portland, Oregon generated $42,000 over five weeks at Regal Fox Tower theater. The film was featured on the CNN.com: http://eatocracy.cnn.com/2011/03/03/vegan-on-the-silver-screen; The film was also featured on Oprah.com: http://www.oprah.com/oprahshow/Diet-Power-Video;

Information on the film and the trailer are available at http://www.forksoverknives.com. 

Last Fast Ride

Last Fast Ride will be shown at the Newport Beach Film Festival on May 1, 2011.  The film produced by Shannon Factor and directed by Lilly Scourtis Ayers premiered at Slamdance. This documentary is about Marian Anderson,a  controversial and influential punk rock lead singer and songwriter who died at the age of 33 from a heroin overdose.
 

Through a combination of concert footage, photographs, and interviews with key people in Marian's life, director Lilly Ayers pieces together the portrait of a fragmented and damaged girl who was left to fend for herself in a world of danger and exploitation. Narrated by punk rock legend and actor Henry Rollins, this riveting film covers Marian's idyllic youth, her tormented adolescence, and her tragic adult life, climaxing in an unforgettable ending.  

The film will screen at the Triangle Square, theater 1, 1870 Harbor Blvd., Costa Mesa, CA 92627 at 8:00 PM Sunday, May 1, 2011. http://lastfastridefilm.com/

Jimi Hendrix Right of Publicity Suit

The Right of Publicity is the right that individuals have to control the use of their name and likeness in a commercial setting. You cannot put a picture of Cher on your brand of pickles without her permission. Everyone has a  right of publicity but it is particularly valuable for celebrities who  can earn large fees from endorsing products. 

The right is determined under  state law. Each state applies its own laws, and the states provide varying treatment on a number of issues. For example, the states decide whether this right is inherited by one's heirs or is a personal right, that dies with the celebrity. 

California courts first held that the right of publicity was personal and did not descend. In 1984, however, the California legislature changed the law. The legislators enacted Civil Code section 990 which provides that the right of publicity descends for products, merchandise and goods, but does not descend for books, plays, television and movies. A similar statute, California Civil Code section 3344 prohibits the unauthorized use of the name and likeness of living persons on products, except for news  and public affairs uses. . Both statutes attempt to balance First Amendment rights of journalists and business people against rights of publicity of celebrities and their heirs.

Generally, the state law that applies is the law where the celebrity was domiciled when he or she dies.  The state of Washington, however, attempted to expand its rights of publicity so that it would cover even those who did not reside in Washington when they died. 

That Washington law, the Washington Personality Rights Act (“WPRA”),  was reviewed in a recent decision  regarding Jimi Hendrix’s estate's right of publicity. A federal judge in  ruled that WPRA), violated the U.S. Constitution.  The court concluded that applying this law regardless of the law of the domicile of the individual at the time of death was arbitrary and unconstitutional.  

WPRA was initially passed in 1998 after a prior decision concluded that Hendrix' publicity rights didn't descend to his father and sole heir, Al Hendrix, since Jimi Hendrix didn't reside in Washington at the time of his death. The law applied retroactively. 

The suit was brought by Experience Hendrix, L.L.C. which owns several songs written by Jimi Hendrix and various federally registered trademarks incorporating Hendrix’s name, image, and song titles.   They sued defendant Hendrixlicensing.com, a seller of Jimi Hendrix merchandise, and sought to enjoin it from using various song titles and lyrics and use of his name and likeness. 

Even though the plaintiff did not allege any claims under WPRA, the court reviewed it because the essence of plaintiff’s allegation was that Hendrix’s right of publicity did not expire upon his death. Under New York law, where Hendrix was domiciled at the time of his death, the right of publicity did not survive his death.

The Defendant argued successfully that such a choice-of-law directive violated the Full Faith and Credit Clause and Due Process Clause of the United States Constitution.

The court also found the law arbitrary because applying it would result in uncertainty regarding the ownership and existence of a right of publicity because it applies only in Washington, and that almost all states except Indiana have determined that the law of the person’s domicile should apply.

The decision can be read at: CASE 

Note that this decision could be reversed by a higher court.

Entertainment Law Resources Blog: Copyright Registration Checklist Scripts or compl...

Entertainment Law Resources Blog: Copyright Registration Checklist Scripts or compl...: "You can now register your scripts and films over the internet with the electronic copyright office, the ECO system. LI..."

Copyright Registration Checklist Scripts or completed Motion Pictures

You can now register your scripts and films over the internet with the electronic copyright office, the ECO system.   LINK   Here is a checklist to gather the information you will need to complete an application.  To Register a Script:    What is title of the script?  Are there any alternative titles?  Has the script or a previous version been registered with the U.S. copyright office? If so, provide registration number: _____  Who wrote the script? List all writers and description of what each contributed. Give full names.  For individuals, give date of birth. If the person is deceased, provide year of death.  Which persons or companies currently own the script? If a company, give full legal name and state of incorporation.  Did the writers create the script for themselves or were they creating the script for an employer? If the latter, who was employer?  What is the address of each owner?  Is the author (owner) a U.S. Citizen?  Was ownership of the script ever assigned or transferred? If so, explain.  Is this script original or based on another work (like a book)?  What year was script that you are registering completed?  Has the script been published? (Publication is distribution to the public. Most scripts are not published). If script was published, what nation was it first published in?  To Register a Motion Picture:  What is the title of the motion picture?  Are there any alternative titles?  Is the motion picture a documentary or a narrative fictional film?  Has the motion picture or a previous version been registered with the U.S. copyright office? If so, provide registration number: _____________ and the title it was registered under.  Who wrote the underlying script that was the basis for the motion picture?  Who owned the script prior to production?  Was the script registered? If so, under what title and what was the registration number.  Who directed the motion picture? Provide full name(s).  Who produced the motion picture?  For individuals, give date of birth. If the person is deceased, provide year of death.  Who owns the completed motion picture?  (Either individuals or a company). Provide full legal name, address and state of incorporation.  Was the motion picture created by individuals as its owners or was it created for a company?  What is the address of the owner? Is the author (owner) a U.S. Citizen?  Was ownership of the motion picture ever assigned? If so, explain. Is this motion picture based on another work (such as a book or play)? What year was production completed?  Has the motion picture been distributed to the public?  If distributed, what nation was it first released in?  Was a previous version of this motion picture registered for copyright?  Does the motion picture incorporate any pre-existing copyrighted works such as music, stock footage, artwork or photographs? You will also need a brief one paragraph description or synopsis of the the motion picture.   LAST FAST RIDE   Congratulations to our clients Shannon Factor and Lilly Scourtis Ayers for having their film shown at Slamdance 2011.   The Slamdance opening night party party (Jan. 21) will feature the punk band InSaints  with an unannounced special guest. The InSaints and their late frontwoman, Marian Anderson, is the subject of a Slamdance doc called "Last Fast Ride." She was a controversial and influential lead singer and songwriter who died at the age of 33 from a heroin overdose.   Through a combination of concert footage, photographs, and interviews with key people in Marian's life, director Lilly Ayers pieces together the portrait of a fragmented and damaged girl who was left to fend for herself in a world of danger and exploitation. Narrated by punk rock legend and actor Henry Rollins, this riveting film covers Marian's idyllic youth, her tormented adolescence, and her tragic adult life, climaxing in an unforgettable ending. Film Website  LAST FAST RIDE

IFTA PUBLISHES ARBITRATION AWARDS

There is a new source of information for those researching the reputations and track records of sales agents, distributors and other companies in the independent film world. IFTA, the Independent Film and Television Alliance, recently decided to publish summaries of the awards made by its arbitrators from 2007 through 2010. They are posted on its website at:  http://www.ifta-online.org/recent-awards

The summaries include the names of the parties, the name of the arbitrator, the date the award was issued and a short summary of the nature of the award.  While IFTA administers the arbitration program, the decisions are solely the prerogative of the arbitrator hearing each dispute.

A review of the award summaries shows that certain companies have been involved in multiple disputes. While this does not necessarily indicate that these companies breached their agreements or are to be avoided, it does offer some insight into disputes that up until recently were not available for public review.  Court records are generally available to the public. Arbitration proceedings, however, are usually private and not available for others to review.

Producers contemplating entering into an agreement with a sales agent, for instance, might want to know if that agent was the respondent in numerous disputes. Sales agents thinking of contracting with a territory buyer might find it useful to know if that buyer failed to live up to its contractual obligations in the past. 

IFTA Arbitration may be used for a wide variety of domestic and international entertainment disputes, such as those arising out of production agreements, motion picture, television and multimedia licensing agreements, financing agreements, film exhibition agreements and sales agency agreements, to name a few.

IFTA Arbitrators are all veteran entertainment attorneys acting as neutral experts who hear arguments, review evidence and issue binding arbitration awards. IFTA Arbitration is usually less formal, faster and costs less compared with litigation in court. Many matters submitted to IFTA Arbitration are settled during the arbitration process.

Filmmakers can use the IFTA Arbitration process if the relevant contract contains an arbitration clause designating the IFTA tribunal to resolve disputes. For disputes arising out of existing contracts that do not provide for IFTA Arbitration, it is still possible to file a claim, as long as both parties agree in writing to use IFTA Arbitration at the time the claim is filed.

Link:  IFTA Arbitration Awards

Full disclosure: I am an IFTA arbitrator and also have represented many clients in IFTA, JAMS and AAA arbitrations.  

UPCOMING SEMINAR with Mark Litwak

SELF DEFENSE FOR WRITERS AND FILMMAKERS

BOSTON,  Friday, February 11, 2011, 8 AM to 5 PM

Writers and filmmakers need to understand their legal rights and how to defend themselves from those who may seek to exploit them. Production companies and distributors often know all the tricks of the trade, while writers and filmmakers know little about how to protect themselves. This seminar, geared towards both artists and attorneys representing artists, explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights, and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. In the event of a dispute, participants learn what remedies are available to enforce their rights. Related topics include creative approvals, typical compensation and terms of studio contracts, merchandising deals, and negotiating tactics and strategies. The seminar includes more than 100 pages of useful contracts, checklists, forms and materials.

At Law firm of Fish & Richardson, One Marina Park Drive, Boston MA 02210

Sponsored by the Arts & Business Council of Greater Boston / Volunteer Lawyers for the Arts

The Arts & Business Council of Greater Boston, together with one of its core programs, Volunteer Lawyers for the Arts, strengthens the vibrant arts community in Greater Boston by providing support services to artists and arts organizations, including training, capacity building, legal services, and technical assistance.

To Enroll